Short answer: In Gonzalez v. Russell Sorensen Construction, the Utah Court of Appeals held that a general contractor can be directly liable to a subcontractor’s employee for a dangerous condition the general contractor created on the job site. The court adopted Restatement (Second) of Torts § 384 as Utah law and let the worker’s claim go forward, even though he never claimed the general contractor controlled how his employer did its work.
General contractors often argue that if they did not control a subcontractor’s work, they owe its workers nothing. Gonzalez limits that defense: when the general contractor created the hazard, the claim is about its own conduct. For the bigger picture, see our guide to construction site injury claims in Utah.
What Happened
Russell Sorensen Construction was the general contractor on Orchard Vista, a planned unit development in Midvale. It hired John Clayton Construction to install siding, soffit, and fascia, and Clayton employed Jose Gonzalez. While Gonzalez stood on scaffolding, a piece of aluminum J-molding he was holding touched high-voltage power lines. The lines hung within ten feet of the building’s roof and 37 inches from the scaffolding. Gonzalez fell 18 feet and was injured (¶¶ 2–3). Because the case came up on summary judgment, the court viewed the facts in the light most favorable to Gonzalez (n.1).
Gonzalez sued Sorensen and others, alleging failures to warn him, to have the power shut off or barriers installed, and to keep the development from encroaching on the lines (¶ 4). He later argued that Sorensen built too close to the lines and then failed to relocate, insulate, or de-energize them, or to warn subcontractors (¶ 12).
Sorensen moved for summary judgment, arguing that a general contractor cannot be liable to a subcontractor’s employee unless it directly controlled the injury-causing part of the work (¶ 5). The trial court denied the motion. It applied § 384 and found disputed facts about whether Sorensen created a dangerous condition and whether it took reasonable steps to protect people on the site (¶ 6). The Court of Appeals agreed to hear Sorensen’s appeal before trial (¶ 2).
The decision is Gonzalez v. Russell Sorensen Construction, 2012 UT App 154, filed May 24, 2012.
What the Court Held
Retained control and direct negligence are different claims. In Utah, someone who hires an independent contractor is generally not liable for harm caused by the contractor’s own acts (Thompson v. Jess, 1999 UT 22, ¶ 13). The main exception is retained control. Under Thompson‘s “active participation” standard, the hiring party is responsible only if it directs how the work is done or interferes with the contractor’s means and methods; a general right to stop, inspect, or make suggestions is not enough (Thompson, ¶¶ 18–21). In Magana v. Dave Roth Construction, 2009 UT 45, the Utah Supreme Court added that general responsibility for site safety is not control (Magana, ¶ 29), but also held that retained control is “separate and distinct” from direct negligence, and that an employer “remains liable for its own direct actions” (Magana, ¶¶ 37–38).
Gonzalez disavowed any vicarious liability claim and said retained control did not apply (¶ 15). Relying on Magana, the Court of Appeals agreed that “the retained control doctrine does not immunize a contractor from its own negligent acts,” and treated his claim as one for direct negligence (¶¶ 18–19).
Section 384 states Utah law. Section 384 says that a person who builds a structure or creates another condition on land on behalf of the possessor has the same liability as the possessor for harm caused by that condition “while the work is in his charge” (¶ 21). No Utah court had adopted it (¶ 24). But in Tallman v. City of Hurricane, 1999 UT 55, the Supreme Court adopted its companion, § 385, which makes a contractor liable for a dangerous condition it created even after the owner accepts the work. The court reasoned that if that duty survives acceptance, it must exist while the work is still in the contractor’s hands (¶¶ 22–26). It held that § 384 “correctly states Utah law governing the liability of general contractors for harm caused to others by conditions at a job site” (¶ 30), and said this was not an expansion of contractor liability (¶ 27).
Applying the rule. Under § 384 and the landowner standard in Hale v. Beckstead, 2005 UT 24, Sorensen could have a duty like a landowner’s to fix the hazard or at least warn Gonzalez (¶ 28). Whether Sorensen created a dangerous condition and took reasonable steps to protect people on the site were disputed facts, so summary judgment was properly denied (¶¶ 29–32). The court also held that the complaint gave fair notice of this theory without alleging that Sorensen owned the property (¶¶ 11–14, 31).
Why It Matters for Injured Construction Workers
Retained-control claims can be hard to prove, because even close safety oversight is not control. Gonzalez asks a different question: who created the condition that hurt you? If the general contractor did, and the work was still in its charge, § 384 can supply a duty without proof of control.
That matters because workers’ compensation is usually the only remedy against your own employer. Utah Code § 34A-2-106(1) allows a separate lawsuit against a third party whose wrongful act or neglect caused the injury, and subsection (4) lists general contractors among those who can be sued, subject to the eligible-employer limit below. A third-party claim is an ordinary injury lawsuit, so it can seek damages workers’ compensation does not cover, such as pain and suffering. The party that paid your benefits is generally reimbursed from any recovery, less its share of fees and costs (§ 34A-2-106(5)).
Falls from height and power-line contact can cause life-changing harm. Our article on catastrophic injury claims in Utah explains how long-term losses are documented.
Limits of the Decision
- It was an interlocutory appeal. The court decided only that the case could go forward, not whether Sorensen was negligent or what damages were owed. The opinion does not say how the case ended.
- It is a summary judgment ruling, not a verdict. The facts were viewed in Gonzalez’s favor, and key facts were disputed (¶ 29). A jury could still decide them against him.
- Timing matters. Section 384 covers the period while the work is in the contractor’s charge. After the owner accepts the work, § 385 applies instead (¶ 23).
- The eligible-employer rule. Today, § 34A-2-106(4) allows a suit against a general contractor only if it is not an “eligible employer” under § 34A-2-103(7)(f). A general contractor that meets that statute’s conditions, which include steps such as securing or verifying workers’ compensation coverage for subcontractors and adopting, posting, and enforcing a written accident and injury reduction program, is treated as the worker’s employer for exclusive-remedy purposes and generally cannot be sued. The Legislature added this limit to § 34A-2-106(4) in 2021 (H.B. 355); before that, the subsection allowed these suits “notwithstanding” § 34A-2-103. The Gonzalez opinion does not discuss workers’ compensation immunity or this rule.
Practical Takeaways
- Ask who created the hazard, not only who controlled the work. A § 384 claim does not depend on proving retained control.
- Preserve evidence of the site condition early: photos, measurements, site plans, and anything showing who knew about the hazard.
- Check early whether the general contractor may be an eligible employer. Insurance certificates and its written safety program are key records.
- Before suing a third party, give written notice to the workers’ compensation carrier (§ 34A-2-106(3)).
- Deadlines apply. Review Utah’s personal injury statute of limitations and act early.
- See our Utah construction site injury guide for other parties who may share responsibility.
Talk to a Utah Injury Attorney
If you were hurt on a Utah construction site, workers’ compensation may not be your only option. We can look at who built and managed the site, whether a general contractor or another company created the hazard, and whether the eligible-employer rule applies, then explain your options in plain terms.
Hurt in Utah? Call (801) 921-5134 or send us your case for a free consultation. No attorney fees unless we win. Hablamos Español.